SUBHASH GANPATRAO BUTY Vs. MAROTI

JUDGEMENT

(1.) Two questions have been referred to this Full Bench by e learned Single Judge for our determination which run as follows:-

(2.) Principally the first question centers round the true and proper interpretation of sub-section (2) of Section 12 of the Limitation Act 1963 and the Explanation thereto and the question arises under these circumstances: The above two Second Appeals were file din this k Court on 1st march, 1971, and the question is whether the appellant in each of the Appeals is entitled to get the benefit of Section 12 (2) read with Explanation thereto and can contend that the appeals are filed within the time prescribed for filing appeals. To understand the claim made by the appellants it will be necessary to set out certain dates. The judgment against which the appeals have been preferred was delivered on 26th October, 1970 . Application for certified copies of the decree were made by the appellants on 6th February, 1971; the copies became ready for delivery on 19th February, 1971, and they were also received by the appellants on the same day and thereafter the appeals were filed by the appellants in this Court on 1st March 1971. The question principally is whether the time taken by the Court for drawing up of its decree is to be included within the concept of 'time requisite' for obtaining the certified copy of the decree and it was not disputed before us that if this time, namely the time between the date of the pronouncement of the judgment (26th October, 1970) and the date when the decrees were prepared and signed (9th December, 1970), was included within the time requisite for obtaining a copy of the decree the appeals would be within the proscribed period of limitation, but if this period was not so included the appeals would be barred by 22 days . It may incidentally be mentioned that the appellant in each of these cases had applied for condonation of delay under Section 5 (vide Civil Application No. 353/73 and Civil Application No. 354/ 73) but the learned Single Judge was not satisfied that the appellants were prevented by sufficient cause from preferring their appeals within the prescribed period of limitation. In other words, the applications for condonation of delay were rejected by him and therefore the claim of the appellants that there has been no delay in presenting the appeal sand the same have been filed within the prescribed period of limitation arises for our consideration. Before the above question is considered under the provisions of the 1963 Act, it would be desirable to indicate what was the position of law on the aspect under consideration under the prior enactment and it would be convenient at this stage to set out the old Section 12 of the 1908 Act; sub-section (2) of that section , which would be relevant, ran as follows:-

(3.) The question as to what time could be legitimately deemed to be taken for obtaining a copy of the decree under the old Section 12 (2) came up of reconsideration before the Supreme Court in the case of Jagat Dhish Bhargava v. Jawahar Lal Bhargava, reported in AIR 1961 SC 832 and the Court pointed out that there was a sharp difference of opinion between different High Courts on the question as to how the concept of 'time requisite for obtaining a copy' was to be understood. The Court pointed out that on the question of computation of time requisite for obtaining a copy of the decree, the Full Bench of High Court of Bombay (AIR 1952 Bom 122) (FB) ) and Patna (AIR 1936 Pat 45 (FB) had taken the view that the entire period taken by the Court for preparing the decree after pronouncement of the judgment should be included in computing the time requisite for a copy of the decree, irrespective of whether an application for such a copy was made either before or after the decree had been prepared but on the other hand the Full Bench of Nagpur High Court (AIR 1927 Nag 1 (FB) had taken a different view that if an application for a copy was not made before the decree was prepared by the Court, the period between the date of the judgment and the date of preparation of the decree could not be taken as time requisite for obtaining a copy of the decree and as such should not be excluded in computing the period of limitation. Paragraphs 9 and 10 of that judgment which are material run as follows:-